complaint counsel's unopposed motion for issuance of subpoenas ad … · ad testificandum. to...

UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSI OFFICE OF THE ADMINSTRATIVE LAW JUDGE ·

In the Matter of

Axon Enterprise, Inc. DOCKET NO. 9389 a corporation;

and

Safariland, LLC, a corporation.

COMPLAINT COUNSEL'S UNOPPOSED MOTION FOR ISSUANCE OF SUBPOENAS AD TESTIFICANDUM TO MUNICIPAL AGENCIES UNDER RULE OF PRACTICE

3.36 AND REQUEST FOR EXPEDITED TREATMENT

Complaint Counsel brings this motion pursuant to Federal Trade Commission

("Commission") Rule of Practice 3.36 for the issuance of Subpoenas Ad Testificandum to

officials of and personnel associated with the listed municipal agencies. Complaint Counsel

requests authorization to issue the attached subpoenas under Rule 3.36, as each municipal agency

is a government agency described in Rule 3.36(a). The municipal agencies for which Complaint

Counsel requests issuance of Subpoenas Ad Testificandum are:

(1) Josephine Murphy, Deputy Inspector; New York City Police Department;

(2) Chief Anthony Tasso, Commanding Officer, Information Technology Bureau;

New York City Police Department;

(3) Dan Gomez (retired), f01mer Lieutenant at the Los Angeles Police Department; 1

PUBLIC

1 At least two of the individuals referenced in this Motion have retired or no longer work at the relevant governmental agency. Although Rule 3 .36 requires pemlission for the issuance of subpoenas only to "officials or employees of governmental agencies," Axon includes these individuals in their March 2, 2020 Motion out of an abundance of caution. As such, Complaint Counsel also includes these individuals.

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PUBLIC

(4) Juan Perez (retired), former Director of the Miami Dade Police Department;

(5) Jeri Williams, Chief of Police, Phoenix Police Department;

(6) Randy Browning, Information Technology Manager, City of Durham Police

Department;

(7) Maura Velasco, Chief Financial Officer, Long Beach Police Department;

(8) George Reynoso, Head of the Body Worn Camera Program, Long Beach Police

Department;

(9) Jim Campion, former Deputy Finance Director, City of Phoenix;

(10) Paul Figueroa, Captain, Oakland Police Department;

(11) Martin Garland, Lieutenant, Aurora Police Department;

(12) Santiago Pastoriza, Procurement Contracting Officer, Procurement Department,

Miami-Dade County;

(13) Jeff Rinaldo, Captain, Buffalo Police Department; and

(14) Lilly Hotard, Lieutenant, Jacksonville Sheriff’s Office.

Respondents do not oppose Complaint Counsel’s motion for the issuance of subpoenas to

the listed municipal agencies. Because the testimony sought from the listed municipal agencies

meets the requirements set out in Rule 3.36, Complaint Counsel respectfully requests that the

Motion be granted and that the attached subpoenas be issued. On March 2, 2020, Respondent

Axon filed a similar motion seeking subpoenas ad testificandum for many of the same

individuals. All fourteen individuals listed by Complaint Counsel are included in Axon’s

motion. Unsigned subpoenas ad testificandum for the listed municipal agencies are attached as

Attachment A.

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PUBLIC

ARGUMENT

Rule 3.36(b) of the Commission’s Rules of Practice requires a party seeking issuance of a

subpoena for the appearance of an official or employee of a governmental agency to make a

specific showing regarding the requested subpoena. With respect to subpoenas ad testificandum

to be served within the United States, the party must show that:

(1) the information sought from the official or employee of the governmental agency

is reasonable in scope;

(2) for discovery, the appearance of the official or employee of the governmental

agency falls within the limits of discovery under Rule 3.31(c)(1); and

(3) for discovery, the information sought from the official or employee of the

governmental agency cannot reasonably be obtained by other means.

The proposed Subpoenas Ad Testificandum to the listed municipal agencies meet all

requirements of Rule 3.36(b).

First, the scope of the testimony requested in the subpoenas ad testificandum is

reasonable. Each listed municipal agency is listed as a potential witnesses in this matter by

either Complaint or Respondent Counsel. Each listed municipal agency is located within the

United States and is either a past, current, and potential customer of Body Worn Camera Systems

(“BWC Systems”).

The scope of the testimony sought from the listed municipal agencies will relate to Axon

Enterprise’s acquisition of VieVu from Safariland (“the Acquisition”), the impact of the

Acquisition on the municipal agency’s needs, experiences, uses, options, supply, or procurement

of BWC Systems, Requests for Proposals (“RFPs”) issued, bids received in response to RFPs,

agreements related to BWC Systems, and competition in the BWC Systems market. The scope

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PUBLIC

of the testimony sought is limited to these and related topics, which is reasonable in scope

relative to the naming of the listed municipal agencies as potential witnesses in this matter.

Because the parties have named the listed municipal agencies as potential witnesses

expected to testify, Respondent Axon filed a motion to subpoena all of the listed municipal

agencies, and the listed municipal agencies are knowledgeable about the product market, market

participants, potential defenses, and competitive effects of the Acquisition alleged in the

Complaint, the testimony sought from the listed municipal agencies falls within the limits of

discovery under Rule 3.31(c)(1), which requires that discovery be “reasonably expected to yield

information relevant to the allegations of the complaint . . . or to the defenses of any respondent.”

As the parties have named the listed municipal agencies as potential witnesses expected

to testify about the above issues and Respondents’ defenses, the testimony sought from the listed

municipal agencies cannot be reasonably obtained by other means.

CONCLUSION

This Court has recognized that issuance of a subpoena to a governmental agency is

appropriate if the moving party meets the criteria under Rule 3.36. In the Matter of Axon

Enterprise, FTC Docket No. 9389 (Order dated Feb. 25, 2020), available at

https://www.ftc.gov/system/files/documents/cases/d9389_aljs_ord_granting_unopposed_motion

for subpoenas ad testificandumpublic597720.pdf. For the reasons stated above, therefore,

Complaint Counsel respectfully requests that the Court grant the Motion and issue the attached

Subpoenas Ad Testificandum to the listed municipal agencies.

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https://www.ftc.gov/system/files/documents/cases/d9389_aljs_ord_granting_unopposed_motion

PUBLIC

Dated: March 2, 2020 Respectfully submitted,

s/ Merrick Pastore

Jennifer Milici Peggy Bayer Femenella Merrick Pastore Z. Lily Rudy Bureau of Competition Federal Trade Commission 400 7th Street, S.W. Washington, D.C. 20024

Complaint Counsel

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PUBLIC

UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION OFFICE OF THE ADMINSTRATIVE LAW JUDGES

In the Matter of


and


COMPLAINT COUNSEL’S MEET AND CONFER STATEMENT

Pursuant to the Scheduling Order issued on January 30, 2020, Complaint

Counsel states that it has conferred with Respondents’ counsel. Respondents’ counsel

has advised that they do not object to the issuance of the subpoenas.

Dated: March 2, 2020 Respectfully submitted,

s/ Merrick Pastore

Jennifer Milici Peggy Bayer Femenella Merrick Pastore Z. Lily Rudy Bureau of Competition Federal Trade Commission 400 7th Street, S.W. Washington, D.C. 20024

Complaint Counsel

PUBLIC

UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION OFFICE OF THE ADMINSTRATIVE LAW JUDGES

In the Matter of


and


[PROPOSED] ORDER ON COMPLAINT COUNSEL’S UNOPPOSED MOTION FOR ISSUANCE OF SUBPOENAS

AD TESTIFICANDUM TO MUNICIPAL AGENCIES UNDER RULE OF PRACTICE 3.36 AND REQUEST FOR

EXPEDITED TREATMENT

On March 2, 2020, pursuant to Rule 3.36 of the Commission’s Rules of Practice,

Complaint Counsel filed an Unopposed Motion for the Issuance of Subpoenas Ad

Testificandum. The unsigned subpoenas are attached hereto as Attachment A.

The requirements of Rule of Practice § 3.36(b) are met, and the Motion is unopposed.

Accordingly, Complaint Counsel’s motion is GRANTED.

ORDERED: ___________________________

D. Michael Chappell Chief Administrative Law Judge

Date:

PUBLIC

ATTACHMENT A

PUBLIC

SUBPOENA AD TESTIFICANDUM Issued Pursuant to Rule 3.34(a)(1), 16 C.F.R. § 3.34(a)(1) (1997)

1. TO Josephine Murphy New York City Police Department 1 Police Plaza New York, NY 10007

2. FROM

UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION

This subpoena requires you to appear and give testimony, at the date and time specified in Item 5, at the request of Counsel listed in Item 8, in the proceeding described in Item 6.

3. PLACE OF HEARING

Federal Trade Commission 400 7th Street, SW Washington, DC 20024 (Or any other location agreed to by the Parties and the Deponent)

4. YOUR APPEARANCE WILL BE BEFORE

Alex Ansaldo, Esq. or designee

5. DATE AND TIME OF HEARING OR DEPOSITION

March 19, 2020, 9:00 a.m.

6. SUBJECT OF PROCEEDING

In the Matter of Axon Enterprise, Inc. and Safariland, LLC; Docket No. 9389

7. ADMINISTRATIVE LAW JUDGE

The Honorable D. Michael Chappell

Federal Trade Commission Washington, D.C. 20580

8. COUNSEL REQUESTING SUBPOENA

Jennifer Milici Federal Trade Commission 400 7th Street, SW Washington, DC 20024 (202) 326-2912

DATE ISSUED SECRETARY'S SIGNATURE

GENERAL INSTRUCTIONS

APPEARANCE The delivery of this subpoena to you by any method prescribed by the Commission's Rules of Practice is legal service and may subject you to a penalty imposed by law for failure to comply.

MOTION TO LIMIT OR QUASH The Commission's Rules of Practice require that any motion to limit or quash this subpoena be filed within the earlier of 10 days after service or the time for compliance. The original and ten copies of the petition must be filed with the Secretary of the Federal Trade Commission, accompanied by an affidavit of service of the document upon counsel listed in Item 8, and upon all other parties prescribed by the Rules of Practice.

TRAVEL EXPENSES The Commission's Rules of Practice require that fees and mileage be paid by the party that requested your appearance. You should present your claim to Counsel listed in Item 8 for payment. If you are permanently or temporarily living somewhere other than the address on this subpoena and it would require excessive travel for you to appear, you must get prior approval from Counsel listed in Item 8.

A copy of the Commission's Rules of Practice is available online at http://bit.ly/FTCRulesofPractice. Paper copies are available upon request.

This subpoena does not require approval by OMB under the Paperwork Reduction Act of 1980.

FTC Form 70-A (rev. 1/97)

http://bit.ly/FTCRulesofPractice

PUBLIC


1. TO Chief Anthony Tasso New York City Police Department 1 Police Plaza New York, NY 10007

2. FROM



3. PLACE OF HEARING





March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO Ret. Lt. Dan Gomez Los Angeles Police Department 200 N. Main St. Los Angeles, CA 90012

2. FROM



3. PLACE OF HEARING



Steven Wilensky, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO Juan Perez County of Miami Dade 111 NW 1st Street, Suite 1300 Miami, FL 33128

2. FROM



3. PLACE OF HEARING





March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO Jeri Williams City of Phoenix Police Department 200 W. Washington St. 13th Floor Phoenix, AZ 85003

2. FROM



3. PLACE OF HEARING



Merrick Pastore, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO Randy Browning Durham Police Department 602 East Main Street Durham, NC 27701

2. FROM



3. PLACE OF HEARING



Nicole Lindquist, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Maura Velasco Long Beach Police Department 411 W. Ocean Blvd, 9th Floor Long Beach, CA 90802

2. FROM



3. PLACE OF HEARING



Z. Lily Rudy, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

George Reynoso Long Beach Police Department 400 W. Broadway Long Beach, CA 90802

2. FROM



3. PLACE OF HEARING



Z. Lily Rudy, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Jim Campion City of Phoenix 200 W. Washington Street, 13th Floor Phoenix, AZ 85003

2. FROM



3. PLACE OF HEARING



Merrick Pastore, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Paul Figueroa Oakland Police Department 455 7th Street Oakland, CA 94607

2. FROM



3. PLACE OF HEARING





March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Martin Garland Aurora Police Department 15001 E. Alameda Parkway Aurora, CO 80012

2. FROM



3. PLACE OF HEARING



Nicole Lindquist, Esq. or designee


March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Santiago Pastoriza County of Miami Dade 111 NW 1st Street, Suite 1300 Miami, FL 33128

2. FROM



3. PLACE OF HEARING





March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Jeff Rinaldo Buffalo Police Department 68 Court Street Buffalo, NY 14202

2. FROM



3. PLACE OF HEARING





March 19, 2020, 9:00 a.m.

















PUBLIC


1. TO

Lilly Hotard Jacksonville Florida Sheriff's Office 501 E. Bay Street Jacksonville, FL 32202

2. FROM



3. PLACE OF HEARING





March 19, 2020, 9:00 a.m.

















PUBLIC

CERTIFICATE OF SERVICE

I hereby certify that on March 2, 2020, I filed the foregoing document electronically using the FTC’s E-Filing System, which will send notification of such filing to:

April Tabor Acting Secretary Federal Trade Commission 600 Pennsylvania Ave., NW, Rm. H-113 Washington, DC 20580

[email protected]

The Honorable D. Michael Chappell Administrative Law Judge Federal Trade Commission 600 Pennsylvania Ave., NW, Rm. H-110 Washington, DC 20580

I also certify that I caused the foregoing document to be served via email to:

Julia E. McEvoy Joseph Ostoyich Michael H. Knight Christine M. Ryu-Naya Jeremy P. Morrison Caroline L. Jones Debra R. Belott Baker Botts, LLP Jones Day The Warner 51 Louisiana Avenue, NW 1299 Pennsylvania Avenue, NW Washington, DC 20001 Washington, DC 20004 Tel: 202-879-3751 Tel: 202-639-7905 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]

Aaron M. Healey Counsel for Respondent Safariland, LLC Jones Day 250 Vesey Street New York, NY 10281-1047 Email: [email protected]

Lee K. Van Voorhis Jenner & Block 1099 New York Avenue, NW Suite 900 Washington, DC 20001 Tel: 202-639-6039

Email: [email protected]

Counsel for Respondent Axon Enterprises, Inc.

mailto:[email protected]









PUBLIC

By: s/ Jennifer Milici Jennifer Milici

Counsel Supporting the Complaint

PUBLIC

CERTIFICATE FOR ELECTRONIC FILING

I certify that the electronic copy sent to the Secretary of the Commission is a true and correct copy of the paper original and that I possess a paper original of the signed document that is available for review by the parties and the adjudicator.

March 2, 2020 By: s/ Jennifer Milici Jennifer Milici

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